SU v Minister for Immigration
[2010] FMCA 220
•26 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SU v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 220 |
| MIGRATION – Review of decision of Migration Review Tribunal – Tribunal found no jurisdiction – no error in Tribunal’s understanding and application of law – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.66, 338, 347, 494B, 494D Migration Regulations 1994 (Cth), reg.4.10, Schedule 2 cl.575.222 |
| Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305 Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550 SZIUK v Minister for Immigration and Citizenship [2007] FCA 226 Tay v Minister for Immigration & Citizenship [2010] FCAFC 23 |
| Applicant: | LI SU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 134 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 26 March 2010 |
| Date of Last Submission: | 26 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2010 |
REPRESENTATION
| The Applicant: | In person |
| Appearing for the Respondents: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 25 January 2010 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 134 of 2010
| LI SU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
This is an application made on 25 January 2010, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 21 December 2009, which found that it did not have jurisdiction to review the decision of a delegate of the first respondent to refuse a student visa to the applicant.
Before the Delegate
The applicant is a national of the People’s Republic of China (“China”) who, while in Australia, applied for a student visa on 13 March 2006. (See Court Book – “CB”, CB 1 to CB 41 with annexures.)
I note the following relevant matters from that application:
1)The applicant gave his residential address as an address in Marsfield, NSW (Question 18 at CB 2).
2)He did not give an address for correspondence (Question 20 at CB 2).
3)He provided an “email” address (Question 21 at CB 2).
4)The application form advises: “Note: If this visa application is refused you will be notified by mail” (CB 2).
5)The applicant did not complete that part of the visa application form that asked for his preference as to where communications about the application should be sent (Question 76 at CB 15).
6)Nor did he nominate an authorised recipient or migration agent for the purposes of that application (Questions 78 to 83 at CB 16).
7)The applicant signed a declaration which, amongst other matters, provided that he would notify the Minister’s department if any of his circumstances relevant to the application were to change during the course of the processing of the application (CB 18.9).
A copy of a letter acknowledging the application is reproduced at CB 42. While it shows the applicant as the intended recipient, it is addressed, on its face, to an address in Gordon. There is no evidence before the Court that the letter was despatched, or that it was handed to the applicant upon the making of the application and the payment of the relevant fee (CB 42).
On 14 August 2007 a delegate of the Minister refused the application. The delegate found that she was not satisfied that the applicant met any of the prescribed criteria for any sub-class of any student visa. In particular, the applicant did not meet the requirements of cl.575.222 at Schedule 2 of the Migration Regulations 1994 (“the Regulations”). That is, there was no evidence that the applicant was, at the relevant, time enrolled in an acceptable course of study, a prerequisite to the grant of that visa (CB 44 to CB 45).
A copy of a letter notifying the applicant of the refusal of the application is reproduced at CB 43. It is dated 14 August 2007. A copy of a “registered post” number appears on its face.
The Tribunal
The applicant applied to the Tribunal for review on 23 October 2009 (CB 47 to CB 53). He appointed a registered migration agent to represent him and authorised him to receive correspondence (CB 50 and CB 54 to CB 55).
A copy of the letter acknowledging receipt of the application is at CB 60.
On 4 November 2009 a Tribunal officer wrote to the applicant seeking his comments on the preliminary view that the application was not valid as it had been made to the Tribunal outside the 21 day time limit for the making of such applications for review, calculated from the date of notification of the delegate’s decision (CB 63). The letter was sent by facsimile transmission to the authorised recipient (CB 61 to CB 62).
The applicant’s adviser sought an extension of time within which to make a response (CB 64). This was granted until 3 December 2009 (CB 66).
On 3 December 2009 the applicant’s adviser provided an “affidavit” made by the applicant. There is nothing on its face, or otherwise, to show when the “affidavit” was made. For that matter, as there was no proceeding before a Court at that time, it is unclear why the applicant purported to make an “affidavit”, rather than the more appropriate, in the circumstances, statutory or other declaration (CB 68 to CB 74).
In any event, this statement by the applicant contains, amongst other matters, the following:
1)The applicant had been in Australia since at least 22 April 2002 when he “started” an English language course in preparation for attending high school in Australia (Item 7 at CB 68.7).
2)Item 27 at CB 71.3:
“I was not received a copy of the decision made by DIMIA on 14 August 2007 which was posted to 1 Cherry Court Marsfield 2122 NSW due to change of address.” (This is the address given in the application for the visa – CB 2.)
3)Item 39 at CB 73.1:
“I plea to MRT taking into account my personal circumstances into consideration …”
On 21 December 2009 the Tribunal found that it did not have jurisdiction to review the delegate’s decision because the application for review was made outside the prescribed time period for the making of such applications (CB 79 to CB 84).
The Tribunal’s relevant findings and reasoning were:
1)The applicant was seeking review of an MRT reviewable decision as set out in s.338(2) of the Act ([16] of the decision record).
2)The applicable prescribed period within which an application for review must be made was 21 days from the date when the applicant was notified of the decision (s.347(1)(b)(i) and reg.4.10(1)(a) – [16]).
3)The contents of the delegate’s decision notice complied with the requirements of s.66(2) ([17]).
4)The applicant did not give the Minister notice of any authorised recipient to whom correspondence should be sent (s.494D – [18]).
5)The delegate’s decision notice dated 14 August 2007 was sent by prepaid registered post on 15 August 2007 from a place in Australia to the applicant’s residential address, being the last such address provided by the applicant to the Minister for the purposes of receiving documents ([18] and [22]).
6)The Tribunal was satisfied on the material ultimately before it that the letter was in fact despatched within three working days of the date of the letter to the relevant address in accordance with s.66(1) and s.494B(4) ([20]).
7)The applicant was taken to have received the notice on 23 August 2007, being seven working days after the date of the notice ([20]).
The Tribunal had regard to the “submission” received from the applicant on 3 December 2009 ([22]). However, having regard to the finding that the applicant was properly notified on 23 August 2007 it was irrelevant as to whether the applicant actually received the notice. The Tribunal found that it had no discretion to accept an application lodged outside the prescribed time frame. The Tribunal found that there was no provision for an extension of time, even where “special circumstances may exist” ([23]).
The Tribunal found the prescribed period ended on 13 September 2007. The application for review was not received until 23 October 2009, well after the prescribed period had ended. As it was outside the mandatory time limit, the application was not valid and the Tribunal had no jurisdiction ([24]-[27]).
Application to the Court
The application to the Court has one ground:
“The Migration Review Tribunal has jurisdiction based on the special circumstances of this case.”
The particulars to this ground repeat some of the procedural history involved in the processing of the application before the Minister’s department as had been set out in his “affidavit”/submission to the Tribunal. (See, in particular, CB 70 and CB 71, and application filed 25 January 2010.)
The particulars also repeat the assertion that while the delegate’s decision notice was posted to the Marsfield address, it “was not received due to a change of address.” Further, the applicant complains that he had reasonable grounds in applying for the review, but was not given the opportunity for these to be examined.
Hearing before the Court
At the hearing before the Court the applicant appeared in person. Although he had a level of competency in English, he was assisted by an interpreter in the Mandarin language. Ms N Johnson appeared for the first respondent. I note that the Minister has filed a formal response and written submissions.
Before the Court the applicant recounted the procedural history and those matters set out in the particulars to the ground as pleaded. The applicant also confirmed to the Court that he had not notified the Minister’s department of any change of address. Further, the applicant complained about the length of time that it took for the Minister’s department to process his application for a student visa, confirmed that he had sought assistance from a migration agent who ultimately told him to come to this Court.
Consideration
I cannot see error in the Tribunal’s understanding of the relevant law and its application to the facts as found. The Tribunal properly understood that, in the circumstances, the critical threshold issue was whether it had jurisdiction to conduct the review.
The applicant complains that he did not receive the notification of the delegate’s decision at the time of posting “due to a change of address”. Before the Court the applicant confirmed that he had not notified the Department of any change of address, following the notice of address that he had provided in the application for the visa.
On what was before the Tribunal, it was reasonably open to it to find that the notification of the decision met all relevant requirements and had been posted to the last residential address provided by the applicant for the purposes of receiving correspondence from the Minister (s.494B of the Act). The applicant had not provided an address for service (s.494B(4)(c)(i)). He had provided a residential address for that purpose (s.494B(4)(c)(ii)). On the material before the Tribunal, there was nothing to show that this was not the last residential address provided for that purpose.
The applicant told the Tribunal in his “submission”, and he repeats this before the Court, that he did not receive the delegate’s letter “due to a change of address”. The difficulty for the applicant is that there was nothing before the Tribunal, nor indeed, as the applicant confirmed before the Court, is there anything before the Court now to show that he notified the Minister’s department of any change in his address. The legislation is clear in this regard that the notification is to be sent to the last (in the current circumstances) residential address provided. On what was before the Tribunal this was the Marsfield address. On what was before it, it was clearly open to the Tribunal to find that the letter had been posted to that to that address.
The reference in the Department’s letter of acknowledgement of the application to an address in Gordon, on the evidence available to the Court, remains unexplained (CB 42). In submissions before the Court, and clearly not put before the Court in any evidentiary context, Ms Johnson sought to explain that this was the applicant’s previous address prior to the making of the application. The letter was sent immediately upon receipt of the application for the visa and that the Minister’s department’s computer system had not yet been “updated” with the most recent address. That is, the one provided in the application for the visa.
Whatever the case, this does not assist the applicant. Wherever the letter of acknowledgement was sent, or whatever was relevantly stated on its face, what clearly remains is that, on the best evidence available, the last residential address provided by the applicant for the purposes of receiving documents for the purposes of the application from the Minister was the Marsfield address. It was to this address that the notification of the delegate’s decision was sent.
The applicant put forward to the Tribunal, and continues to put forward, that there existed “special circumstances” in his case and that these created jurisdiction for the Tribunal. That is, if the Tribunal had considered these special circumstances, it would have found that it had jurisdiction, and then could have considered the “reasonable grounds” of his application to it.
First, as the Minister correctly submits, given its findings that the notification had been properly sent, had complied with all relevant legislative and regulatory requirements, and given that the application for review to it was received after the expiry of the prescribed period for the making of such applications, the Tribunal had no power to extend the relevant time. I note relevant authorities in support of that proposition. (Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305, Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 - “Xie”, Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550 - “Murphy”, SZIUK v Minister for Immigration and Citizenship [2007] FCA 226).
Further, it was open to the Tribunal to find that the Minister sent the notification in accordance with s.424B(4). This meant that the applicant was taken to have received the notification on 23 August 2007. The Tribunal was correct to note that, in that circumstance, it was irrelevant whether or not the applicant actually received the decision notice. (See Tay v Minister for Immigration & Citizenship [2010] FCAFC 23, especially at [14] to [26] and in particular, see [17] and the reference to Xie and Murphy per Spender J at [19] and [25].)
To enliven jurisdiction, the application to the Tribunal must be made within the prescribed period (Xie).
The Tribunal did consider the applicant’s submission as to special circumstances. However, the Tribunal’s findings, which were all open to it to make on what was before it, led to the conclusion that the application to it had been made out of time. Given the relevant statutory and regulatory scheme, I can see no error in the Tribunal’s decision. It did not have jurisdiction. Whatever special circumstances may have existed in the applicant’s case, his grief, his understandable feelings of unfairness, cannot change the relevant legal position that the Tribunal was bound to apply, given the factual findings that it made, and which were open to it to make.
In these circumstances, the application to the Court is dismissed.
Postscript of Concerns
Before the Court, the applicant complained of the delay, or length of time taken by the Minister’s department to decide his application. The application was made on 13 March 2006, and the decision was made on 14 August 2007, some 17 months later. From any plain reading of the delegate’s decision record, it does not appear that this was a matter of any great complexity. Simply, as I have already said, the applicant did not meet any of the relevant criteria for any of the sub-classes for any of the student visas. In particular, because he had not provided evidence that he had been enrolled in an acceptable course of study at the relevant time.
I note the applicant’s submission to the Court that he had been assigned one case officer to his matter, and then this case officer “left”, and he was allocated a different case officer. While it is quite understandable that people change employment, a large organisation such as the Minister’s should be able to make proper arrangements for the timely reassignment of work in these circumstances. On its face, it appears that this case took about 17 months to process. By any measure, I would respectfully say to the Minster that that is far too long for the processing of this application. Such delay in the circumstances cannot assist this applicant before the Court. But it may be a matter, as I told the applicant, that he consider referring to the Ombudsman.
The second matter that I raised with Ms Johnson involved the migration agent, who also appears to be a solicitor, who assisted the applicant. In making comments of this type great care must be taken where persons are not parties to the proceedings to the Court, yet it still remains to note that the applicant obtained the assistance of the registered migration agent, who was also a solicitor. It is of concern that with that assistance, the so-called “affidavit” contained deficiencies as to form, was inappropriate to the type of proceedings for which it was submitted, and most importantly, did not address the single most important and central issue in the applicant’s case. That is, the basis of the Tribunal’s concern as to whether it had jurisdiction, as it derives from the circumstances relevant to the notification of the delegate’s decision to the applicant. This latter is of concern if the adviser was just a migration agent. All of this is of concern, given that he was also a solicitor (CB 55). [Although the problem may be one of supervision, given that it appears that the person having actual carriage of the matter was not the migration agent/solicitor, but an employee (CB 56, CB 64, CB 67).]
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 24 May 2010
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